0120071505
03-19-2007
Michael D. Miralles, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Michael D. Miralles,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120071505
Agency No. 8I1M05022
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 21, 2006, finding that it was in
compliance with the terms of an October 31, 2005 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The October 31, 2005 settlement agreement provided, in pertinent part,
that:
3. a. Within 60 days of the signing of this agreement, [to] change
the appraisal factor ratings for performance rating cycle 1 Apr 04 -
30 Mar 05 to all 9's.1
By letter to the agency dated January 13, 2006, complainant claimed that
the agency was in breach of provision 3.a. of the settlement agreement,
and stated that he considered the agreement null and void. Specifically,
complainant claimed that the agency failed to change his appraisal factor
ratings as agreed.
In a January 31, 2006 final decision, the agency found no breach.
On appeal, the Commission issued a decision vacating the agency's final
decision, determining that the record was insufficient to determine
whether a breach occurred. On remand, the Commission ordered the
agency to supplement the record with an affidavit from the Chief of the
Work Force Effectiveness Branch (Chief) identified by the agency in its
January 31, 2006 final decision. Miralles v. Department of the Air Force,
EEOC Appeal No. 01A62480 (June 30, 2006).
In the July 21, 2006 final decision that is the subject of the instant
appeal, the agency again found no breach of provision 3.a. The agency
stated that according to the Chief, complainant's appraisal factor ratings
for the subject period were changed to all 9's by management on September
11, 2005, which was prior to the signing of the settlement agreement
on October 31, 2005. The agency stated that according to the Chief,
even though a delay occurred with updating complainant's new appraisal
scores in the personnel data system, which was completed on January 23,
2006, the agency was in compliance of provision 3.a.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, the supplemental record contains a memorandum
dated January 24, 2006, from the Chief. Therein, the Chief stated that
complainant's "annual performance appraisal as been modified to reflect
the changed promotion factors." The Chief further stated "our failure to
accomplish this within the time frame identified in the agreement was an
oversight on our part and I regret any inconvenience it may have caused."
The record also contains a copy of complainant's Civilian Rating of
Record for the rating period of April 1, 2004 to March 31, 2005; and
that all appraisal factor ratings were changed to all 9's.
Upon review, we agree that the agency substantially complied with
provision 3.a. of the settlement agreement. Moreover, we have held
that the failure to satisfy a time frame specified in a settlement
agreement does not prevent a finding of substantial compliance of its
terms, especially when all required action were subsequently complied.
Lazarte v. Department of the Interior, EEOC Appeal No. 01954274 (April 25,
1996); Sortino v. United States Postal Service, EEOC Request No. 05950721
(November 21, 1996), citing Baron v. Department of the Treasury, EEOC
Request No. 05930277 (September 30, 1993) (two weeks delay in transfer
of official letter of regret rather than letter of apology found to
be substantial compliance); Centore v. Department of Veterans Affairs,
Appeal No. 01A04637 (November 2, 2000) (a few days after sixty day time
period for compliance not a material breach of settlement agreement).
Finally, we note that on appeal, complainant raises new claims wherein
he claimed that he was coerced to sign the subject agreement; and that
he did not receive an annual employee bonus in the 2005 fiscal year.
We note that these claims were not previously raised. It is inappropriate
for complainant to raise these new claims for the first time as part of
his August 2006 appeal.
Accordingly, the agency's finding of no breach of provision 3.a. of the
October 31, 2005 settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
2. The appellate decision will have a substantial impact
on the policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 19, 2007
__________________
Date
1 The settlement agreement also provides that the agency will, within 60
days of the signing of the agreement, effect a management reassignment
to 94 MSG Dobbins Air Force Base, Georgia. This provision is not at
issue in the instant appeal.
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0120071505
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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